Weekly Update Volume 37, Issue 29
CWA, IMPAIRED WATERS:
The Ninth Circuit vacated an NPDES permit EPA issued to a mining company allowing it to discharge copper into Arizona's Pinto Creek, a waterbody already in excess of water quality standards for copper. The applicable regulation, 40 C.F.R. §122.4, states that no permit may be issued to a new discharger if the discharge will contribute to the violation of water quality standards. EPA argued that the partial remediation of the discharge from the mine will offset the pollution. However, there is nothing in the CWA or the regulation that provides an exception for an offset when the waters remain impaired and the new source is discharging pollution into that impaired water. An exception is allowed where the owner or operator can demonstrate that there are sufficient remaining pollutant load allocations to allow for the discharge and that the existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards. But neither of those conditions has been met in this case. Friends of Pinto Creek v. United States Environmental Protection Agency, No. 05-70785, 37 ELR 20255 (9th Cir. Oct. 4, 2007) (19 pp.).
QUIET TITLE ACTIONS, INTERVENTION:
The Tenth Circuit held that conservation groups may not intervene in a federal quiet title action brought by a Utah county against the U.S. government to quiet title to an unpaved road in the Canyonlands National Park. The groups opposed county control of the road and therefore sought to intervene as a matter of right under Fed. R. Civ. P. Rule 24(a)(2) and permissively under Fed. R. Civ. P. Rule 24(b). The lower court properly denied their applications. The groups need not establish standing. Nor does sovereign immunity bar the groups' intervention. However, the groups failed to overcome the presumption that their interest was adequately represented by the federal defendants as required by Rule 24(a)(2). The groups gave the court no reason to believe that the federal defendants have any interest in relinquishing to the county any part of the federal title to the road. The U.S. government may wish to compromise with the county concerning use of the road, but nothing has indicated that they would do so by transferring an easement and the authority that goes with it. If developments after the original application for intervention undermine the presumption that the federal defendants will adequately represent the groups' interest, the matter may be revisited. The lower court's denial of the groups' application for permissive intervention was proper as well. San Juan County v. United States, No. 04-4260, 37 ELR 20254 (10th Cir. Oct. 2, 2007) (154 pp.).
WASTEWATER TREATMENT FACILITIES, FALSE CLAIMS ACT:
The Eleventh Circuit upheld the dismissal of dairy farmers' False Claims Act against a Georgia county for misrepresenting its compliance with state and local environmental laws in order to obtain federal government loans for wastewater treatment facilities providing sewage sludge as fertilizer for the farmers' agricultural fields. The farmers' allegations of fraud on the loans sought by the county were based on public documents and disclosures. Therefore, they were not the original source of the information, as required by the False Claims Act. In addition, the lower court did not err in converting the county's motion to dismiss for failure to state a claim into a motion to dismiss for lack of subject matter jurisdiction. Since it treated the motion as a facial challenge to the court's jurisdiction rather than a factual challenge, no discovery was needed. McElmurray v. August-Richmond County, No. 06-16493, 37 ELR 20252 (11th Cir. Oct. 1, 2007) (18 pp.).
CAA, NEW SOURCE REVIEW, NEW SOURCE PERFORMANCE STANDARDS:
The Eleventh Circuit upheld the dismissal of conservation groups' citizen suit action against the TVA for alleged CAA violations in connection with work it performed in the early 1980s on a coal-fired boiler at its power plant in Colbert County, Alabama. The lower court properly dismissed the groups' claims that TVA violated various new source review requirements by failing to obtain construction permits and install emission controls at the plant. Because TVA had done no work on the unit in question in the five-year period immediately preceding the filing of the complaint, these claims are barred by the statute of limitations. The groups also argued that TVA's operation of the plant violated the new source performance standards on a daily basis for nearly twenty years. The lower court properly dismissed this claim for failing to provide proper pre-suit notice. The groups' notice letter broadly alleged daily violations of an entire set of regulations without specifically identifying the individual alleged violations and dates. National Parks & Conservation Ass'n v. Tennessee Valley Authority, No. 06-10729, 37 ELR 20256 (11th Cir. Oct. 4, 2007) (32 pp.).
The Tenth Circuit reversed in part and affirmed in part a lower court decision dismissing a property owner's RCRA and state law claims concerning the purported migration of tar-like material from adjacent property. Both properties are located on a former oil refinery that operated from 1917 until 1932. Tar-like material was a waste byproduct of the refinery's operation. The lower court erred in dismissing the owner's RCRA, public nuisance, and abatement claims at the summary judgment stage. Issues of material fact remain as to whether the migration of tar-like material presented an imminent and substantial endangerment to health or the environment. Likewise, the question of whether the adjacent property owner knew of the tar-like material when he took title to the property was for a jury to decide. The lower court also erred in entering judgment as a matter of law as to the property owner's private nuisance and unjust enrichment claims. The court, therefore, vacated the lower court's order awarding attorney fees to the neighbor. The lower court, however, properly denied the neighbor's motion for spoliation sanctions. Burlington Northern & Santa Fe Railway Co. v. Grant, Nos. 04-5182 et al., 37 ELR 20258 (10th Cir. Sept. 24, 2007) (12 pp.).
SPENT NUCLEAR FUEL, CONTRACT LAW, MITIGATION DAMAGES:
The Federal Claims Court held that an electric utility is entitled to $116,485,000 in mitigation damages for DOE's partial breach of a contract concerning the disposal of spent nuclear fuel. The utility operates three nuclear reactors. DOE entered into a contract with the utility that required it to accept, transfer, and permanently store spent nuclear fuel and other hazardous waste produced by the utility's generation of electricity. When it became apparent that DOE would not be able to accept the waste in a timely manner, the utility sought alternative methods to dispose of the waste. In total, it expended $172,154,000 to satisfy its spent fuel storage needs. The court ruled that the costs the utility incurred in developing on-site and off-site dry storage facilities for the spent nuclear fuel qualified as recoverable mitigation damages. However, the utility may not recovery the cost of capital it expended in connection with its mitigation-related activities. Cost of capital damages are conceptually indistinguishable from prejudgment interest, which is not recoverable against the United States under 28 U.S.C. §2516 absent a statute or contract provision specifically recognizing the right to maintain such an action. Northern States Power Co. v. United States, No. 98-484C, 37 ELR 20259 (Fed. Cl. Sept. 26, 2007) (20 pp.).
CALIFORNIA ENVIRONMENTAL QUALITY ACT, "SINGLE PROJECT":
A California appellate court reversed a lower court decision denying a petition for writ of mandate challenging a city's approval of a home improvement center construction project. A citizens group argued that the realignment of a nearby road should have been considered as part of the same project under the California Environmental Quality Act (CEQA). The appellate court agreed. The construction of the home improvement center and the realignment of the road constitute a single CEQA project. The home improvement center project is dependent upon, not independent of, the road realignment because the opening of the home improvement center was conditioned upon the completion of the road realignment. The two acts, therefore, are part of a single project for purposes of CEQA, and the city violated CEQA by treating them as separate projects subject to separate environmental reviews. Tolumne County Citizens for Responsible Growth, Inc. v. City of Sonora, No. F051508, 37 ELR 20253 (Cal. Ct. App. 5th Dist. Oct. 2, 2007) (49 pp.).
STRICT LIABILITY, THIRD-PARTY EXCEPTION:
North Carolina's appellate court reversed and remanded a jury's award of $500,000 in compensatory and punitive damages to the owner of a well whose water was contaminated with gasoline due to leaking USTs at a nearby gasoline station. The trial court failed to instruct the jury on the third-party exception to the strict liability provisions of the North Carolina Oil Pollution and Hazardous Substances Control Act. Because sufficient evidence was produced at trial to allow a reasonable inference by the jury that a third-party's actions were the cause of the discharge of gasoline, the lower court's failure to instruct the jury on the third-party exception to the strict liability statute was erogenous. The court, therefore, reversed and remanded for a new trial. Ellison v. Gambill Oil Co., No. COA06-1016, 37 ELR 20257 (N.C. Ct. App. Oct. 2, 2007) (8 pp.).
Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.
THE FEDERAL AGENCIES
Note: Citations below are to the Federal Register (FR).
- EPA announced a determination of acceptability that expands the list of acceptable substitutes for ozone-depleting substances under its Significant New Alternatives Policy program; the determinations concern new substitutes for use in the refrigeration and air conditioning sector. 72 FR 56628 (10/4/07).
- EPA announced that it designated a new reference method for measuring concentrations of carbon monoxide in the ambient air. 72 FR 56339 (10/3/07).
- EPA proposed to revise its definition of volatile organic compounds; the revision would add propylene carbonate and dimethyl carbonate to the list of excluded compounds. 72 FR 55717 (10/1/07).
- SIP Approvals: Alabama (clean air interstate rule (CAIR)) 72 FR 55659 (10/1/07). Indiana (nitrogen oxide (NOx) regulations, Phase II) 72 FR 55664 (10/1/07). Kentucky (CAIR) 72 FR 56623 (10/4/07). Mississippi (CAIR) 72 FR 56268 (10/3/07). New Jersey (CAIR) 72 FR 55666 (10/1/07). North Carolina (CAIR) 72 FR 56914 (10/5/07). Pennsylvania (carbon monoxide (CO) maintenance plan revisions) 72 FR 56911 (10/5/07).
- SIP Proposals: Kentucky (CAIR; see above for direct final rule) 72 FR 56706 (10/4/07). Maryland (control of volatile organic compound (VOC) emissions from consumer products) 72 FR 56707 (10/4/07). New York (CAIR) 72 FR 55723 (10/1/07). North Carolina (eight-hour ozone NAAQS redesignation request, maintenance plan, motor vehicle emissions budgets for NOx, and an insignificance determination for VOC emissions from motor vehicles) 72 FR 56312 (10/3/07); (CAIR; see above for direct final rule) 72 FR 56974 (10/5/07). Pennsylvania (CO maintenance plan revisions; see above for direct final rule) 72 FR 56975 (10/5/07).
- EPA announced the availability of its 2007 website, Causal Analysis/Diagnosis Decision Information System, which is designed to help scientists and engineers evaluate causes of biological impairment observed in aquatic systems such as streams, lakes, and estuaries. 72 FR 56755 (10/4/07).
- OSM approved an amendment to Pennsylvania's regulatory program under SMCRA concerning the exemption from certain permitting requirements relating to surface mining of coal, when extraction of coal is incidental to government-financed construction or government-financed reclamation projects and specified requirements are met. 72 FR 56619 (10/4/07).
- EPA promulgated a significant new use rule for elemental mercury used in certain convenience light switches, anti-lock braking system switches, and active ride control system switches. 72 FR 56903 (10/5/07).
- NOAA-Fisheries revised the management measures for reducing the incidental mortality and serious injury to the Northern right whale, humpback whale, and fin whale in commercial fisheries so that it could meet the goals of the Marine Mammal Protection Act and the ESA. 72 FR 57103 (10/5/07).
DOJ NOTICES OF SETTLEMENT:
- United States v. East Kentucky Power Cooperative, Inc., No. 06-cv-00211-JMH (Sept. 20, 2007). A settling CAA defendant who operates three coal-fired power plants in Kentucky and violated certain portions of the Act must pay a fixed penalty of $11,400,000 over six years, must install and operate nitrogen oxide emissions controls on Dale Units 1 and 2, must continuously operate pollution monitoring equipment for those units, and must apply for appropriate permits. 72 FR 56790 (10/4/07).
- United States v. Morera. A settling Park System Resource Protection Act defendant who grounded a vessel in Biscayne National Park in Homestead, Florida, in 2004, and damaged the area's seagrass bed and supporting habitat must pay $295,000 for response costs and damages caused by grounding the vessel. 72 FR 56791 (10/4/07).
- United States v. Transformer Services Inc., No. 1:07-cv-00296-SM (D.N.H. Sept. 18, 2007). A settling TSCA defendant who failed to dispose of polychlorinated biphenyl (PCB) waste within one year from the date the waste was designated for disposal must fund the closure trust fund at $1500 per month and must finalize a cleanup resulting from a minor release of PCBs at its facility in New Hampshire. 72 FR 56791 (10/4/07).
- United States v. The Upjohn Co., v. ABF Freight System, Inc., No. 1:92-CV-659 (W.D. Mich. Sept. 21, 2007). Performing settling CERCLA defendants connected to the West KL Avenue Landfill Superfund site in Kalamazoo County, Michigan, must implement a Record of Decision (ROD) Second Amendment issued by EPA on September 12, 2005 that: (1) revises the boundary of the municipal water service to residences, moving the boundary further downgradient to include additional properties that have had site-related contaminants detected in their drinking water wells; (2) replaces the active pump and treat remedy for the contaminated groundwater plume selected by the initial 1990 ROD with Monitored Natural Attenuation and contingent remedies; and (3) replaces the 1990 ROD cap design. 72 FR 56792 (10/4/07).
- EPA seeks comment on the external review draft document titled, An Exploratory Study: Assessment of Modeled Dioxin Exposure in Ceramic Art Studios. 72 FR 56756 (10/4/07).
- EPA seeks comment on the draft document titled, Scientific and Ethical Approaches for Observational Exposure Studies. 72 FR 56757 (10/4/07).
- EPA seeks public comment on a draft pesticide registration notice entitled Environmental Hazard Statements for Outdoor Residential Pesticides. 72 FR 56344 (10/3/07).
- EPA announced the availability of the Results of the Superfund Alternative Approach Evaluation report for public review. 72 FR 56346 (10/3/07).
Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.
Citations below are to the Congressional Record (Cong. Rec.).
- S. 742 (Ban Asbestos in America Act), which would amend TSCA to reduce the health risks posed by asbestos-containing materials and products having asbestos-containing material, was passed by the Senate. 153 Cong. Rec. S12728 (daily ed. Oct. 4, 2007).
- S. 221 (poultry and livestock) was reported by the Committee on the Judiciary. S. Rep. No. 110-190, 153 Cong. Rec. S12774. (daily ed. Oct. 4, 2007). The bill would amend title 9, U.S. Code, to provide for greater fairness in the arbitration process relating to livestock and poultry contracts.
- S.J. Res. 17 (fish) was reported by the Committee on Commerce, Science, and Transportation. 153 Cong. Rec. S12774 (daily ed. Oct. 4, 2007). The bill would direct the United States to initiate international discussions and take necessary steps with other nations to negotiate an agreement for managing migratory and transboundary fish stocks in the Arctic Ocean.
- H. Con. Res. 193 (hunting) was reported by the Committee on the Judiciary. 153 Cong. Rec. S12774 (daily ed. Oct. 4, 2007). The bill would recognize all hunters across the United States for their continued commitment to safety.
- S. 2124 (Baucus, D-Mont.) (land use) would direct the Secretary of Agriculture to convey certain land in the Beaverhead-Deerlodge National Forest, Montana, to Jefferson County, Montana, for use as a cemetery. 153 Cong. Rec. S12379 (daily ed. Oct. 1, 2007). The bill was referred to the Committee on Energy and Natural Resources.
- S. 2129 (Dorgan, D-N.D.) (energy) would amend the Internal Revenue Code of 1986 to establish the infrastructure foundation for the hydrogen economy. 153 Cong. Rec. S12532 (daily ed. Oct. 3, 2007). The bill was referred to the Committee on Finance.
- S. 2144 (Coleman, R-Minn.) (energy) would require the Secretary of Energy to conduct a study of feasibility relating to the construction and operation of pipelines and carbon dioxide sequestration facilities. 153 Cong. Rec. S12774 (daily ed. Oct. 4, 2007). The bill was referred to the Committee on Energy and Natural Resources.
- S. 2146 (Carper, D-Del.) (emissions) would authorize the Administrator of EPA to accept, as part of a settlement, diesel emission reduction supplemental environmental projects. 153 Cong. Rec. S12775 (daily ed. Oct. 4, 2007). The bill was referred to the Committee on Environment and Public Works.
- S. 2149 (Dorgan, D-N.D.) (energy) would amend the Energy Policy Act of 1992 to establish a program to provide incentives for projects to produce synthetic gas, liquid fuels, and other products from coal and other feedstocks while simultaneously reducing greenhouse gas emissions and reliance of the United States on petroleum and natural gas. 153 Cong. Rec. S12775 (daily ed. Oct. 4, 2007). The bill was referred to the Committee on Finance.
- S. 2155 (Byrd, D-W. Va.) (energy) would amend the Energy Policy Act of 1992 to encourage the development of clean energy technologies for deployment in markets abroad, to assist DOE's promotion of research and development of clean and efficient energy systems, and to encourage DOE and other federal agencies to work together to improve the advancement of sustainable energy use and reduce greenhouse gas emissions. 153 Cong. Rec. S12775 (daily ed. Oct. 4, 2007). The bill was referred to the Committee on Foreign Relations.
- S. 2156 (Bingaman, D-M.N.) (water) would authorize and facilitate the improvement of water management by the Bureau of Reclamation and require the Secretary of the Interior and the Secretary of Energy to increase the acquisition and analysis of water resources for irrigation, hydroelectric power, municipal, and environmental uses. 153 Cong. Rec. S12775 (daily ed. Oct. 4, 2007). The bill was referred to the Committee on Energy and Natural Resources.
- S.J. Res. 20 (Dorgan, D-N.D.) (cattle and beef) would disapprove a final rule of the Secretary of Agriculture relating to the importation of cattle and beef. 153 Cong. Rec. S12532 (daily ed. Oct. 3, 2007). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
- H.R. 3723 (Fossella, R-N.Y.) (stewardship) would establish the Raritan Bay Stewardship Initiative. 153. Cong. Rec. H11170 (daily ed. Oct. 2, 2007). The bill was referred to the Committee on Natural Resources and the Committee on Transportation and Infrastructure.
- H.R. 3734 (Simpson, R-Idaho) (conservation) would rename the Snake River Birds of Prey National Conservation Area in the state of Idaho as the Morley Nelson Snake River Birds of Prey National Conservation Area in honor of the late Morley Nelson, an international authority on birds of prey, who was instrumental in the establishment of this National Conservation Area. 153. Cong. Rec. H11170 (daily ed. Oct. 2, 2007). The bill was referred to the Committee on Natural Resources.
- H.R. 3739 (Grijalva, D-Ariz.) (water) would amend the Arizona Water Settlements Act to modify the requirements for the statement of findings. 153 Cong. Rec. H11249 (daily ed. Oct. 3, 2007). The bill was referred to the Committee on Natural Resources.
- H.R. 3754 (Costa, D-Cal.) (emissions) would authorize the Administrator of EPA to accept, as part of a settlement, diesel emission reduction supplemental environmental projects. 153 Cong. Rec. H11315 (daily ed. Oct. 4, 2007). The bill was referred to the Committee on Energy and Commerce.
- H.R. 3755 (Deal, R-Ga.) (animals) would amend Section 1308 of Title 40, U.S. Code, to provide immunity for federal government agencies from claims resulting from the donation of unfit horses and mules and to allow certain agents of U.S. Customs and Border Protection to adopt such horses and mules. 153 Cong. Rec. H11315 (daily ed. Oct. 4, 2007). The bill was referred to the Committee on Oversight and Government Reform.
- H.R. 3756 (Degette, D-Colo.) (wilderness preservation) would designate certain lands in the state of Colorado as components of the National Wilderness Preservation System. 153 Cong. Rec. H11315 (daily ed. Oct. 4, 2007). The bill was referred to the Committee on Natural Resources.
- H.R. 3757 (DeLauro, D-Conn.) (forest protection) would provide additional protections for National Forest System lands in the Tongass National Forest in Alaska through the designation of additional wilderness areas, Land Use Designation II management areas, restoration areas, special management areas, and components of the national wild and scenic rivers system. 153 Cong. Rec. H11315 (daily ed. Oct. 4, 2007). The bill was referred to the Committee on Natural Resources.
- H.R. 3768 (Nunes, R-Cal.) (water) would require the Secretary of the Interior to study and construct all projects and programs that are included in the Friant Water Users Authority document titled "San Joaquin River Restoration Program: Water Management Goal-Recirculation, Recapture of Restoration Flows and Mitigation of Water Supply Reductions." 153 Cong. Rec. H11315 (daily ed. Oct. 4, 2007). The bill was referred to the Committee on Natural Resources.
- H. Res. 714 (Pascrell, D-N.J.) (fire) would support the work of firefighters to educate and protect the nation's communities and support the goals and ideals of Fire Prevention Week, October 7-13, 2007, as designated by the National Fire Protection Association. 153 Cong. Rec. H11316 (daily ed. Oct. 4, 2007). The bill was referred to the Committee on Oversight and Government Reform.
Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.
IN THE STATES
Note: The entries below cover state developments since the last issue of Update. The entries are arranged by state, and within each section, entries are further subdivided by subject matter area. For a cumulative listing of materials reported in 2007, visit our list of Cumulative State Developments Arranged by State, or our list of Cumulative State Developments Arranged by Subject Matter. For state material reported prior to 2007, visit the ELR Archives.
The states below have updates this week:
Alabama Delaware Louisiana New Jersey Rhode Island Utah Alaska Florida Maine New Mexico South Dakota Virginia Arkansas Georgia Maryland North Carolina Tennessee Washington California Indiana Nevada Oregon Texas
- The Agricultural and Conservation Development Commission is soliciting public comment on proposed rule provisions entitled "Authority, Purpose and Scope, Definitions, Responsibilities, Administration of Funds, Eligibility, Processing Procedures, Maintenance of Practices, Determining Status of Practices During Transfer of Land Ownership, Reporting and Accounting" of the Alabama Agricultural and Conservation Development Commission, which provides financial assistance to owners of land used for agricultural or timber production for applying soil conservation, water quality improvement, or reforestation and forest improvement practices. Comments are due November 6, 2007. See http://www.alabamaadministrativecode.state.al.us/UpdatedMonthly/AAM-SEPT-07/Agriculture&Conservation.pdf
- The Forestry Commission has repealed emergency rule 390X8. 02, Declaration of Emergency Drought Condition, originally filed August 31, 2007. See http://www.alabamaadministrativecode.state.al.us/UpdatedMonthly/AAM-SEPT-07/emergencyrules.pdf (p. 1)
- The Department of Natural Resources will conduct public scoping meetings to consider the development of amendments to the Northwest Area Plan that will designate the primary use for 4 million acres of land acquired since the establishment of the Northwest Area Plan in 1989. The meetings will be held October 11, 2007. See http://notes4.state.ak.us/pn/pubnotic.nsf/1604e1912875140689256785006767f6/15d28520bc39921289257364007d42b6?OpenDocument
- The Arkansas Pollution Control and Ecology Commission will hold a public hearing to receive comments on proposed changes to Commission Regulation No. 9, which governs the permit fee program for the Arkansas Department of Environmental Quality. Proposed changes to Regulation No. 9 include changes to rules concerning air quality, water, and solid waste. The hearing will be held November 7, 2007. See http://www.adeq.state.ar.us/ftproot/pub/pa/Regulation_Notices/2007-10-03_Notice_of_Proposed_Changes_to_Regulation_9.mht
Hazardous & Solid Wastes:
- The California Integrated Waste Management Board (CIWMB) will conduct a public hearing to consider a proposal to amend numerous regulations under Title 27, California Code of Regulations, Division 2, Subdivision 1. The proposed changes would: (1) clarify that closure and postclosure maintenance cost estimates shall be based on costs the state may incur if the state assumes responsibility for the specific activity due to a failure of an owner/operator and address the need for contingencies on all cost estimates; (2) clarify the requirement that when insurance is the financial assurance mechanism, the insurance policy must provide that if the CIWMB or other government entity or court issues an order covering an insured activity (closure, postclosure maintenance, or corrective action), the assured funds will be fully available upon request of the CIWMB regardless of any remaining premiums to be paid; and (3) include appropriate cleanup language for clarity and consistency. The hearing will be held November 13, 2007. Comments are due November 14, 2007. See http://www.oal.ca.gov/pdfs/notice/39z-2007.pdf (pp. 1600-1603)
- The Department of Pesticide Regulation will conduct a public hearing to consider amendments to Section 6860 of Title 3, California Code of Regulations. The proposed regulatory action designates the pesticide chemical methidathion as a toxic air contaminant in Subsection (a) pursuant to Food and Agricultural Code Section 14023. The hearing will be held November 13, 2007. Comments are due November 14, 2007. See http://www.oal.ca.gov/pdfs/notice/39z-2007.pdf (pp. 1590-1592)
- The Delaware River Basin Commission will hold a public hearing to receive comments on proposed amendments to the Commission's Water Quality Regulations, Water Code, and Comprehensive Plan to establish numeric values for existing water quality for the reach of the main stem Delaware River known as the "Lower Delaware" and to assign this reach the Special Protection Water classification "Significant Resource Waters." The hearing will be held December 4, 2007. Comments are due December 6, 2007. See http://regulations.delaware.gov/register/october2007/proposed/11%20DE%20Reg%20376%2010-01-07.htm#P6_52
- The Department of Environmental Protection will conduct a public meeting on Rule 18-21.011, F.A.C., Payments and Fees, to consider adjusting the formula for calculating the fees required to use sovereignty submerged land in Chapter 18-21, F.A.C., in response to the June 12, 2007, Governor and Cabinet meeting. The meeting will be held October 10, 2007. See http://faw.dos.state.fl.us/newfaw/FAWVOLUMEFOLDERS2007/3339/SECTVI.pdf (p. 4543)
- The Department of Environmental Protection will conduct a public hearing to consider amendments to Georgia's Rules for UST Management, Chapter 391-3-15. The hearing will be held October 20, 2007. Comments are due November 13, 2007. See http://www.gaepd.org/environet/15/
- The Water Pollution Control Board has adopted amendments to 327 IAC 2-1-3, 327 IAC 2-1-10, 327 IAC 2-1.5-5, 327 IAC 2-1.5-18, and 327 IAC 5-2-10 and added 327 IAC 2-1-3.1 concerning the establishment of a combined sewer overflow (CSO) wet weather limited use subcategory and permit compliance schedules for qualifying communities affected by CSOs. See http://www.in.gov/legislative/iac/20071003-IR-327050218FRA.xml.pdf
- The Department of Environmental Quality has adopted emergency rules repealing the Department’s incorporation by reference of 40 CFR 63, Subpart DDDDD, NESHAPs for Industrial, Commercial, and Institutional Boilers and Process Heaters and the September 22, 2005, revisions to the definitions of commercial and industrial solid waste incineration unit, commercial or industrial waste, and solid waste found in 40 CFR §§60.2265 and 60.2875. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ290E.pdf
Hazardous & Solid Wastes:
- The Department of Environmental Quality has renewed and revised Emergency Rule OS066E6, concerning disposal of sewage sludge in treatment works treating domestic sewage and other areas unprepared to receive the waste stream, which was effective on May 27, 2007. Language addressing standards for the transporter of sewage sludge and the vehicle used to transport the sewage sludge has been removed. The Department has proposed a rule (OS066) to promulgate certain provisions of these regulations. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/OS066E7.pdf
- The Maine Department of Environmental Protection is soliciting public comment on its proposal to amend Chapter 528, Pretreatment Program. This proposed rule amends the rule originally adopted in 1999. This is a routine periodic update of an existing rule being done to maintain consistency with U.S. EPA's parallel regulations and to make various administrative changes. This chapter describes the regulatory requirements for the execution of an Industrial Pretreatment Program, parallel with 40 CFR Part 403. Changes to the federal regulation, collectively referred to as the "Pretreatment Streamlining Rule," effective November 14, 2005, are incorporated therein. Comments are due November 9, 2007. See http://www.maine.gov/sos/cec/rules/notices/2007/101007.htm
- The Department of Environmental Protection will conduct a public hearing to consider the amendment of Chapter 305, Permit by Rule, Subsection 20, Activities in existing developed areas located in, on, or over high or moderate value inland waterfowl and wading bird habitat, or shorebird nesting, feeding, and staging areas. These amendments would allow additional activities to proceed under a simplified permitting process, Permit by Rule, rather than an individual, full permit process. The hearing will be held November 1, 2007. Comments are due November 12, 2007. See http://www.maine.gov/sos/cec/rules/notices/2007/101007.htm
- The Secretary of the Environment is soliciting public comment on the proposal to amend Regulation .01 under COMAR 26.12.01, Radiation Protection. The amendment would incorporate revised regulations for the medical use of radioactive material. The corresponding federal regulation is found at 10 CFR Part 35. As an NRC Agreement State, Maryland is required to adopt regulations that are compatible with NRC regulations. Comments are due October 30, 2007. See http://www.dsd.state.md.us/mdregister/3420/index.htm#Radiation_Protection_60
- The State Environmental Commission will conduct a public hearing to consider amendments to Regulation R143-07, Nevada Clean Air Mercury Rule Program. This petition will amend Nevada Administrative Code 445B.3711 to 445B.3791 of the State “Air Pollution” regulations. The amendment is needed to address certain technical changes to the regulations governing Nevada's Clean Air Mercury Rule Program, including public participation requirements defined in recently enacted Assembly Bill 67. The hearing will be held December 4, 2007. See http://www.sec.nv.gov/docs/public_notice_all_120407.pdf (p. 6)
- The State Environmental Commission will conduct a public hearing to consider amendments to Regulation R142-07, Greenhouse Gas Reporting, Minor Violation Fine Increase and Permitting Corrections/Clarifications. The amendments would change Nevada Administrative Code 445B.001 to 445B.3497 of the state air pollution regulations by mandating the reporting of greenhouse gases (GHGs) emitted by certain generators of electricity for inclusion in a registry of GHG emissions and requiring the Nevada Division of Environmental Protection to issue, at least every four years, a statewide inventory of GHGs released in the state. The hearing will be held December 4, 2007. See http://www.sec.nv.gov/docs/public_notice_all_120407.pdf (pp. 4-5)
Hazardous & Solid Wastes:
- The State Environmental Commission will conduct a public hearing to consider amendments to Regulation R179-05, Waste Landfill Cover Requirements. This regulation addresses "cover requirements" of compacted solid waste at certain landfills in Nevada. The regulation would amend Nevada Administrative Code 444.688. The requested change will reverse an existing requirement that allows certain landfills in Nevada to operate for up to six days without applying cover soil to exposed waste. The hearing will be held December 4, 2007. See http://www.sec.nv.gov/docs/public_notice_all_120407.pdf (pp. 1-2)
- The State Environmental Commission will conduct a public hearing to consider amendments to Regulation R125-07, Release Reporting Regulations of Hazardous Substances or Petroleum Products in Excess of Reportable Quantities. The proposed regulation would amend the Nevada Division of Environmental Protection's existing release reporting regulations contained in Nevada Administrative Code 445A.345 to 445A.348. See http://www.sec.nv.gov/docs/public_notice_all_120407.pdf (pp. 3-4)
- The State Environmental Commission will conduct a public hearing to consider amendments to Regulation R137-07, Adoption by Reference, Hazardous Waste. These amendments pertain to Chapter 444 of the Nevada Administrative Code. The proposed amendments would update Nevada's adoption of federal regulations by reference. The hearing will be held December 4, 2007. See http://www.sec.nv.gov/docs/public_notice_all_120407.pdf (pp. 2-3)
- The New Jersey Department of Environmental Protection is soliciting public comment on proposed readoption of the Private Well Testing Act rules, N.J.A.C. 7:9E, with amendments. The Department is proposing an amendment at N.J.A.C. 7:9E-2.1 to expand arsenic sampling requirements to two additional counties (Warren and Sussex) in the list of counties in which sampling for this contaminant is required. Comments are due November 30, 2007. See http://www.nj.gov/dep/rules/notices/100107a.html
- The Oil Conservation Commission will conduct a public hearing on October 22, 2007, concerning a proposal to repeal 18.104.22.168.50 NMAC (concerning pits and below-grade tanks) and replace it with a proposed new rule to be codified as 19.15.17 NMAC. The proposed new rule would ban all unlined pits absent a special exception; adopt new requirements for the closure of pits and below-grade tanks; change the Commission's existing requirements concerning the permitting, design, construction, and operation of pits and below-grade tanks (and operation of sumps) used in oil and gas operations; and require the permitting of and prescribe rules for the design, construction, operation, and closure of closed loop systems or other alternative methods that may be proposed for use in lieu of pits or below-grade tanks. The hearing will be held October 22, 2007. Comments are due October 22, 2007. See http://www.nmcpr.state.nm.us/nmregister/xviii/xviii18/Energynotice.htm
- The New Mexico Environmental Improvement Board will hold a public hearing to consider amendments to several UST rules, including 20.5.1 NMAC (General Provisions), 20.5.2 NMAC (Registration of Tanks), 20.5.3 NMAC (Annual Fee), 20.5.4 NMAC (New and Upgraded Storage Tank Systems: Design, Construction and Installation), 20.5.5 NMAC (General Operating Requirements), 20.5.6 NMAC (Release Detection), 20.5.8 NMAC (Out-of-Service Systems and Closure), and 20.5.14 NMAC (Certification of Tank Installers). The hearing will be held December 4, 2007. Comments are due December 4, 2007. See http://www.nmcpr.state.nm.us/nmregister/xviii/xviii18/Environotice.htm
Hazardous & Solid Wastes:
- The Department of Environment and Natural Resources has adopted amendments to several rules concerning the North Carolina Dry-Cleaning Solvent Cleanup Fund program. See http://www.ncoah.com/rules/register/Volume22Issue07October12007.pdf (pp. 484-488)
- The Department of Environment and Natural Resources has adopted amendments to several UST rules. Changes will become effective November 1, 2007. See http://www.ncoah.com/rules/register/Volume22Issue07October12007.pdf (pp. 475-484)
- The Department of Environmental Quality will conduct public hearings to consider amendments that intend to clarify and update references in state revolving fund rules. Hearings will be held October 16, 17, and 22, 2007. See http://arcweb.sos.state.or.us/rules/1007_Bulletin/1007_rulemaking_bulletin.html
- The Department of Environmental Quality will conduct public hearings to consider amendments to administrative rules concerning the disclosure of the relationship between proposed rules and federal requirements. Hearings will be held October 16, 17, and 22, 2007. See http://arcweb.sos.state.or.us/rules/1007_Bulletin/1007_rulemaking_bulletin.html
Hazardous & Solid Wastes:
- The Rhode Island Department of Environmental Management will conduct a public hearing on the proposed amendment of "Rules and Regulations for Composting Facilities and Solid Waste Management Facilities." The proposed amendments to Solid Waste Regulations No. 1, General Requirements; No. 3, Transfer Stations and Collection Stations; and No. 7, Facilities That Process Construction and Demolition Debris would clarify the regulation of construction and demolition debris. The hearing will be held November 8, 2007. Comments are due November 8, 2007. See http://www.dem.ri.gov/programs/benviron/waste/sw137pn.htm
- The Department of Environment and Natural Resource conducted a public hearing to consider numerous amendments to Surface Water Quality Standards, including adding a definition for "Epilimnion" and updating references to reflect the most current version of the Code of Federal Regulations. The hearing was held October 3, 2007. See http://legis.state.sd.us/rules/register/10012007.pdf (p. 94)
Hazardous & Solid Wastes:
- The Solid Waste Disposal Control Board will conduct a public hearing to receive public comments regarding an amendment to Chapter 1200-1-13, Hazardous Substance Site Remedial Action. The hearing will be held October 16, 2007. See http://www.tn.gov/sos/rules_hearingnotices/2007/1200/1200.20070831.08-33-07.notice.pdf
- The Tennessee Petroleum UST Board will hold a public hearing to receive comments concerning amendments to Chapter 1200-1-15, UST program. The hearing will be held October 19, 2007. Comments are due November 19, 2007. See http://www.tn.gov/sos/rules_hearingnotices/2007/1200/1200.20070831.08-34-07.notice.pdf
- The Tennessee Department of Environment and Conservation, Division of Water Pollution Control, will conduct a public hearing to consider amendments to groundwater quality rules. The hearing will be held October 19, 2007. Comments are due November 19, 2007. See http://www.tn.gov/sos/rules_hearingnotices/2007/1200/1200.20070822.08-15-07.notice.pdf
- The Tennessee Department of Environment and Conservation, Division of Water Pollution Control, will conduct public hearings to consider amendments to Environmental Protection Fund Fees rules. Hearings will be held November 1-16, 2007. Comments are due November 26, 2007. See http://www.tn.gov/sos/rules_hearingnotices/2007/1200/1200.20070828.08-19-07.notice.pdf
- The General Land Office has adopted, on an emergency basis, new 31 TAC §15.19, concerning Emergency Provisions for Stabilization and Repair of Damaged Residential Structures, and new §15.20, concerning Emergency Measures for Beach and Dune Restoration and Existing Shoreline Protection Projects. See http://www.sos.state.tx.us/texreg/sos/EMERGENCY/31.NATURAL%20RESOURCES%20AND%20CONSERVATION.html#9
- The Department of Environmental Conservation will conduct a public hearing on proposed amendments to rules concerning NESHAPs. The amendment would update the incorporation date of 40 CFR Part 61 and 40 CFR Part 63 to July 1, 2007, and incorporate by reference new federal regulations that may apply to current or future Utah sources of hazardous air pollutants. If requested, a public hearing will be held October 24, 2007. Comments are due October 31, 2007. See http://www.rules.utah.gov/publicat/bull_pdf/2007/b20071001.pdf (pp. 12-15)
- The Department of Environmental Conservation will conduct a public hearing on proposed amendments to rules concerning Permits: Major Sources in Attainment or Unclassified Areas (PSD). The federal PSD permitting program in 40 CFR 52.21 is incorporated by reference into Rule R307-405. The proposed amendment would update the incorporation by reference to the most recent version of the Code of Federal Regulations, dated July 1, 2007. See http://www.rules.utah.gov/publicat/bull_pdf/2007/b20071001.pdf (pp. 15-19)
- The Virginia Department of Environmental Quality will conduct a public hearing to accept comment on a proposed revision to the SIP. The proposed revision would certify that the commonwealth is meeting the requirements of CAA§110(a)(2)(D)(i), which requires that states prevent air pollution that could impede the ability of other states to meet the NAAQS, interfere with prevention of significant deterioration, and have a negative effect on visibility. The hearing will be held October 17, 2007. See http://townhall.virginia.gov/L/ViewMeeting.cfm?MeetingID=9843
- The Department of Ecology adopted expedited permanent rules to clean up all of the rules involved with creating Chapter 173-455 WAC, the air quality fee rule. See http://apps.leg.wa.gov/documents/laws/wsr/2007/19/07-19-005.htm
- The Department of Ecology will conduct public hearings to consider the issuance of a general permit to cover the control of aquatic noxious weeds in and around surface waters of the state. The hearings will be held November 5 and 7, 2007. Comments are due November 14, 2007. See http://apps.leg.wa.gov/documents/laws/wsr/2007/19/07-19-046.htm
Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.
PROTECTING COD AND CORAL OFF EASTERN CANADA
Members of the Northwest Atlantic Fisheries Organization met this week in Lisbon, Portugal, where they adopted a newly revised convention to protect marine ecosystems with a precautionary approach. The decision aims at protecting cod and assisting in the cod's recovery by protecting vulnerable coral habitat off of Newfoundland and Labrador. See http://www.enn.com/animals/article/23558
MEMBERS OF PARLIAMENT TOUR PANGANI RIVER BASIN
Eight members of Parliament from several East African countries visited the Pangani River Water Basin in Tanzania to raise awareness about the importance of water resource and ecosystem management. The members called for the coordination of different government departments to increase transparency and effectiveness in protecting the basin's natural resources. In addition to meeting with local officials about restoring the basin's ecosystem, the members also made requests to the World Conservation Union Eastern Africa Regional Programme to develop a joint strategy for addressing the river basin's environmental challenges. See http://www.iucn.org/en/news/archive/2007/09/28_african_basin.htm
PHILIPPINES BANS FISHING TO REVIVE CORAL REEF
A new law in the Philippines has declared a "no-take zone" in the country's largest coral reef in order to permit the recovery of fish species. The Apo Reef, a renowned diving spot, will continue to be open to tourists, who provide funding for conservation and an alternative livelihood for local fishermen. See http://www.reuters.com/article/environmentNews/idUSMAN32716420071002?feedType=RSS&feedName=environmentNews
Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.
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